No, The Fifth Amendment Does Not Complicate Net Neutrality

from the oh-please dept

I've said it plenty of times before: I don't think that the government should mandate net neutrality, but I'm getting pretty sick of ridiculously tortured explanations for why doing so is somehow illegal. There are plenty of legitimate reasons not to support network neutrality legislation, and I'm amazed that those against it keep trying to make really far out claims. The latest comes to us via Slashdot, which points us to an article claiming that the Fifth Amendment's eminent domain concept in the "takings clause," net neutrality would consist of an unconstitutional "taking." Sorry, I don't buy it. Not even close. You can read the full paper this is based on, written by Daniel Lyons from Boston College, but it the logic is just not there to support the claim.

The key problem is defining the internet as a a private broadband network, when in nearly every case, the broadband infrastructure involved includes tremendous use of government granted rights of ways and other government subsidies. If the telcos actually had built their network entirely on their own and negotiated privately with land owners for rights of way, they might have a point on this one. But they didn't and they don't.

However, the paper pretends that the internet is a purely private network:

The purpose of the "open internet" initiative is to prevent broadband providers from controlling which third-party content and application providers can use their networks to deliver information to end-user consumers. In essence, these third parties receive an unlimited, continuous right of access to broadband providers' private property. This access allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity, all without having to pay the network provider for access. The effect is to appropriate the use of these private networks for the public's benefit, in the form of unfettered and nondiscriminatory access to the content and applications of the consumer's choosing.

Almost none of that accurately represents the situation. Content and service providers are not "invading" (especially not physically) anyone's private network at all. Nothing can be further from the truth. They have, instead, put themselves out on the open internet, and these service providers chose to connect to the open internet allowing their users to request such content. The content and service providers are doing nothing proactive, especially nothing that deserves the grossly misleading "invading" moniker.

Lyons then tries to twist this into a claim that it's like an easement on physical property. Again, this is simply untrue. The third parties are not proactively going onto anyone's network. They have set themselves up and connected directly to the open internet (via their own ISPs to which they pay handsomely for bandwidth) and the only times their content crosses those other networks is when the end users (i.e., the customers of these ISPs) reach out and request that the content be sent to their computer. That's how the open internet works. If the ISPs don't like it, they shouldn't have offered an internet service. To twist this and claim that the internet is somehow a "private network" of these ISPs and service providers who connect to the open internet are somehow "invading" that private network is the height of sophistry.

Effectively, you could take Lyons' twisted reasoning and apply it to nearly any government regulation. Taxes? Clearly an unjustified "taking" of someone's private property. Highway speed limits? An unjustified "taking" of the private owners' use of their own automobile. It's not hard. Try it with some other laws. Lyons tries to get around this by suggesting the key is the "right to exclude." But this is also wrong. It assumes that the ISP controls the wider internet, rather than its own network. Yes, a telco has every right to not connect to the internet. But once it does, it's expected to abide by the overall rules of the internet. If it wants to "exclude," then it doesn't need to hook up to the internet.

There are some other factual problems with the paper, such as suggesting that the telcos developed DSL in response to the success of cable modem services. That's not quite accurate. While DSL did lag cable slightly in implementation, cable was not widely deployed when DSL came on the market. The two were more or less developed in parallel.

I have no doubt that this argument will likely come into play in the upcoming fight over the FCC's attempt to reclassify broadband access, but it seems like an excessively weak claim that I hope no court would seriously consider. There are much more serious issues to focus on, including whether or not the sort of change is actually within the FCC's mandate.

Re:

Except that this statement is in err. The Telcos may not have negotiated with the Land Owners, but they did in fact negociate with the government for this space, and they are paying handsomely for the right to use this space.

Essentially the Telcos are "renting" the rights of way from the government, and as such those rights of way becom private property as long as the rent is paid......

Re: Re:

One needs to point out, of course, that a lessee is required to do some things a lessor says they have to do. And yes, the space is private property as long as the telcos, cable providers, power companies and so on oblige by the rules, as they may change from time to time set by the lessor.

Struck me as odd too...

"Content and service providers are not "invading" (especially not physically) anyone's private network at all. Nothing can be further from the truth."

How could this guy write up a paper on the internet without taking the time to fundementally understand how it works? I mean, the very terminology gives a fairly accurate portrayal of what's going on. Servers serve up data. Hosting means the data resides there. Accessing content means the user goes and gets it.

To ignore that the end user, who is paying the Telcos for use of their network, is the one bringing the traffic in over the wire is so fundementally misinformed, you have to wonder if this piece isn't a well-funded attempt at misinformation....

Cable and Rights of Way

That said, your argument falls apart when it comes to cable networks. Cable has never been government funded, and access to the rights of way was negotiated and paid for using private capital.

So you may be correct about the takings clause not applying to the old common carriers - who received guaranteed rate of return and access to rights of way. However, you're dead wrong when it comes to cable. Takings would most assuredly apply.

This was, to some extent, part of the reasoning behind Brand X. The government cannot force a company to be a common carrier.

If you end up, under your argument, forcing the telephone companies to operate under Title II, and cable under something else, then you end up exactly where you were before the FCC reclassified AT&T and Verizon.

Re: Cable and Rights of Way

That's not completely true. The Telecommunications Act of 1996 prevented the utility companies from charging monopoly rents for providing access to rights of way, and this certainly assisted the cable companies ability to negotiate this access (although I assume it doesn't cover all right of way negotiations).

Re: Cable and Rights of Way

actually...you are wrong. The government give subsidies to the backbone. Without said backbone there is no internet. Therefore, cable companies would still be SOL if not for the government.

On another note, this guy who wrote this must not be a computer major. If he is a journalist major, he should be exptecting a call from the NYT any time now with a HUGE offer to report for them....just sayin...

Re: Cable and Rights of Way

Cable has never been government funded, and access to the rights of way was negotiated and paid for using private capital.

You fail to mention that those ROW's are not openly available to others, even at the same price. I know, I've tried to get it to start a new service. No such luck.

Additionally, I once lived in an area where two cable companies' borders met. One company served one side of the street, and the other served the other side. Yet, people on side of the street could not get service from the cable company on the other side. The cable companies claimed that it was illegal for them to compete in such a manner.

Re: Cable and Rights of Way

The cable might be a private network, but as soon as it accesses the internet, it is a private network accessing a public network which the government created and regulates. The article goes over this in detail.

Re: Cable and Rights of Way

Charter has never once contacted me about negotiating the right to aerial trespass over my property with 5 different cables.

Heck, all of my attempts at contacting Charter to remove or bury these lines have been ignored.

Cable companies have expressly benefited from government negotiation of right of way, subsidies, building code, and many other aspects of government intervention. To claim that they are some how free of the taint of government is quite absurd.

Re: Re: Cable and Rights of Way

Yep. Make the cablecos and telcos go out and lease or buy property in the open market for their infrastructure if they want to claim they aren't publicly subsidized. See how fast their tune changes then.

Re: Cable and Rights of Way

*Effectively, you could take Lyons' twisted reasoning and apply it to nearly any government regulation.*

Indeed and the right has been doing that for years.

*access to the rights of way was negotiated and paid for using private capital.*

Ah, "access to the rights of way". But the rights of way are public. It's like saying "I paid good money to that congressman for my pork and you can't take it away". Cable companies are public-granted monopolies, like all current American the broad-band carriers. To keep their monopoly status they legally must dance to whatever tune the voter plays. Their talk of property right is so much huffing and puffing - something which the public should take into consideration when thinking about renewing said monopoly rights (of course, the public's agent, the government, is quite thoroughly corrupted by the monopolists and the public itself asleep but that's how it goes).

I could imagine that the final stage of this will be corrupt mid-level government bureaucrats themselves who start arguing that they can't be fired since their job have become just like "property".

Re: Cable and Rights of Way

*Effectively, you could take Lyons' twisted reasoning and apply it to nearly any government regulation.*

Indeed and the right has been doing that for years.

*access to the rights of way was negotiated and paid for using private capital.*

Ah, "access to the rights of way". But the rights of way are public. It's like saying "I paid good money to that congressman for my pork and you can't take it away". Cable companies are public-granted monopolies, like all current American the broad-band carriers. To keep their monopoly status they legally must dance to whatever tune the voter plays. Their talk of property right is so much huffing and puffing - something which the public should take into consideration when thinking about renewing said monopoly rights (of course, the public's agent, the government, is quite thoroughly corrupted by the monopolists and the public itself asleep but that's how it goes).

I could imagine that the final stage of this will be corrupt mid-level government bureaucrats themselves who start arguing that they can't be fired since their job have become just like "property".

Right to exclude?

The very first thing I thought when I read this was "So, does that mean that because the government has taken away my right to exclude {christians, hindus, atheists, women, african-americans} from my {place I'm renting, employment opportunity, place of business}, it's unconstitutional and / or I get some kind of subsidy?"

Re: Right to exclude?

The very first thing I thought when I read this was "So, does that mean that because the government has taken away my right to exclude {christians, hindus, atheists, women, african-americans} from my {place I'm renting, employment opportunity, place of business}, it's unconstitutional and / or I get some kind of subsidy?"

The government has no business regulating private property. This crap all started when they freed the privately owned slaves.

Stop the Cap.

Government contributions

What exactly are the government contributions to the current internet infrastructure? Obviously they were crucial in the birth and early days of the internet. They also were very important when the internet became widely available to the public by providing backbone services for ISPs. But the NSF backbone is no more.

I know the government regulates "right-of-way" rates that utility and other companies can charge, but what else did the government do to build the current internet? Did they give companies tax incentives to build internet infrastructure? Did they actually directly fund any of this? I think part of the recent recovery act may have funding some broadband, but what else?

The reason I'm asking is because it seems like the meme "The government built the internet and then handed it over to the telco and cable companies" is one that gets repeated a lot, but I never see a great deal of evidence, other than the fact that it was the government that was mostly responsible for the early backbones and other connectivity. But there's been a ton of money spent since then.

So does anyone know what percentage of the current internet was built using government funding or subsidized by tax incentives? 10%? 50%? 99%? And maybe people are thinking of the USF, but as far as I know that isn't meant to fund broadband, but maybe it does indirectly.

Re: Government contributions

The reason I'm asking is because it seems like the meme "The government built the internet and then handed it over to the telco and cable companies" is one that gets repeated a lot, but I never see a great deal of evidence, other than the fact that it was the government that was mostly responsible for the early backbones and other connectivity.

The basic technology and right of ways are the very most important parts of their systems. If you don't think so, show me one that manages to get by without it.

That said, I'd fully support exempting any internet service providers that don't use any government-derived internet protocols or right-of-ways from any network neutrality requirements. Fair enough?

Oh THAT Daniel Lyons

You know, this name rang an alarm bell with me the moment I saw it. As well as being Fake Steve Jobs, in another existence, he also got spoon fed and believed SCO to the point where he as regularly slagging Groklaw and others who felt that SCO had no case (and worse). In the end he had to eat road kill crow. Or some road kill not even a crow or eagle would touch. This was during is "tech analyist" phase at Forbes, a calling he seems most unsuited for.http://en.wikipedia.org/wiki/Daniel_Lyons
It appears that Lyons counts in the group that self describes on Groklaw as IANAL (I am not a lawyer) so one wonders about his qualifications not to mention his credibility.

Private Networks

The internet is not a private network and openness and neutrality are a large part of what made it what it is today. If anyone wants to see some examples of private, closed, non-neutral wide-area networks, go take a look the the history of Compuserve, America On-Line, the Microsoft Network, et al and see how that worked out.

These attempts to close the internet are often brought by the kind of business folks who lost out to it in the open market to begin with. They are now trying to leverage their gov't granted broadband monopolies to do what they couldn't do in an open market.

This has been done before...

In the early 90's this crap company called AOL came out and they had their little AOL crapware that people used, and thought THAT was the internet. It seems that is what telco's want now, some bloated crapware that has the advertisements, stories, links, feeds, or whatever minimal crap they want to shovel down your throats for a very bloated fee. We saw what happened to AOL.

They only way for anything to change is for people to start becoming aware of things around them, and have a better understanding of the technology they are using. AOL is not the internet, there is no Yahoo or ATT browser, cable modem is not a modem nor does it use the phone, The monitor is not the whole pc, and the hard drive actually sits inside the tower, the tower its self is not called a hard drive....

The ignorance of our society will be the downfall of our open and free internet. I just get baffled when it comes to this, how could one country and 3-4 companies control the entire world communication system?

Cable vs DSL

In terms of what came first, the reality is that HDSL preceded cable broadband fairly handily. Sadly, telcos then fell in love with another, now mostly dead, variety of "broadband" that could run on twisted pair at great distances. And they could charge a ton for it the same way they did for HDSL which they sold that to governments, universities (the places where the backbone of the Internet began and to a huge extend still resides) and private users who could afford such things.
ADSL, as Mike indicates, came along as an almost panic response by telcos to the development of cable modems.
Let's remember. too, that most of this happened in a remarkably short period of time. My first Internet connection was on a 48K dial up modem in 1993 and by 1995 I was on an evaluation ADSL line (it was crap) and by 1997 I was on one of the first commercially available residential ADSL lines my employer offered (still pretty much crap) and by 2000 most of the crap was gone and we began to see what we have now.
Personally I tend to lean towards net neutrality as it applies to protocols (bittorrent or otherwise) while I do start to distance myself when it comes to intelligent traffic shaping, as opposed to the sledgehammer approach cablecos use. The reason for the sledgehammer is twofold in that a cable line is a shared facility (blah blah blah) for the last mile or 10 though the more important aspect is found in the word modem. Cable modems have to convert analog to digital inbound and again outbound by the very nature of the transmission facility cable runs on. Coax just isn't good at distance for anything digital, frequently worse that twisted pair. ADSL, on the other hand is a pure dataset -- digital in, digital out. The DSL model tends to lend itself to intelligent traffic shaping while the cable model requires something of a sledgehammer. Not as huge as cablecos plead they need but still a sledgehammer.

Re: Congratulations

What the paper discusses is an issue known as "regulatory taking". This is a subject that as of late seems to have become the "soup du jour" of those in academia who teach in the areas associated with property law.

For whatever it may be worth, regulatory takings are not a legal principle that has found a receptive audience with the judiciary. Much like land use regulations, such takings generally require that the burden placed upon the property holder be of such a magnitude as to effectively eliminate substantially all economic benefits enjoyed by the property holder. I rather doubt this is the case with network neutrality. Would it impose a burden to some degree? Pehaps. Would it for all intents and purposes eliminate substantially all economic benefits? Unlikely.

Private Property

We recently had a criminal court case here involving one of those "private property" libertarian types. You know, the ones who like to claim that the government has no business telling them what they can and can't do on their "private property"? That was part of his claimed defense anyway. His crime? Raping his own children "in the privacy of his own home on private property." The jury didn't buy that "private property" crap and sentenced him to life in prison.

How is the internet public in any form?

As far as I understand: While the internet is not ONE private network, it is a series of many private networks linked together. As far as I have ever seen, every access point to the internet is private as well. Someone owns that computer, owns that server, owns that router. I see this debate take place and it seems to take place in some ideological big picture way but I have a tendency to look at the cable / phone jacks in my house and think about following them back to each website I access, to each node I am crossing along my online journey. At what point are these public?

People talk about Rights of Way? The line im transmitting over runs through a right of way granted from the city I live in to many companies (power, cable, phone, etc). So are people trying to say that since the physical cables in some areas run along these rights of way, the internet is therefore public? Is that seriously the argument?

Re: How is the internet public in any form?

People talk about Rights of Way? The line im transmitting over runs through a right of way granted from the city I live in to many companies (power, cable, phone, etc).

And I bet it's just ONE power company, ONE cable company, and ONE phone company, right?

So are people trying to say that since the physical cables in some areas run along these rights of way, the internet is therefore public? Is that seriously the argument?

The argument is that if a company is granted a government provided monopoly using public facilities then that company should provide access to the resulting service in a non-discriminatory manner. This is the case with, for example, power companies that are usually required to provide service in a neutral manner. The power company is not allowed to, for instance, buy an interest in Pizza Hut and then disconnect the power to competing pizza shops. Neither can I decide that I don't like my neighbors and simply pay off the utility companies to cut them off. Now you may not see anything wrong with such behaviors, but that's why we have laws. Seriously.

Re: How is the internet public in any form?

You are partially correct. Private networks connect to the internet, but public networks carry the traffic. The internet consists of many privately owned public access networks.
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Diners and Malls are privately owned but public access.
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I'll give you a comparison which should shed some light on the issue for you.

What if AT&T leased you a phone line, but then decided that they didn't want you calling any type of business that they didn't approve of, such as video rental (they DO provide cable). Even worse, what If AT&T decided that they wouldn't let you call a line on a competitor's service because they "shouldn't be forced to provide the lines for their very competitors." Do you think the phone network would survive very long under those conditions?

2 things the government should do.

Start building their own internet exchange points(IXP) all over the country and start building their own backbone and encourage communities to build their own networks to connect to those internet exchange.

The government owns the infra-structure and subcontracts the administration and maintenance to the private sector.

Until 1995 the government had its backbone, that was the year they transferred that to the private sector.

Right of Way.

See this is where the anti-net neutrality falls apart.

Wireless and Wired telecommunications require right of way to exist; end of story. Attempting to inject the concept of "private" while this factor still remains makes the arguments rather pointless at best.

Without Right of Way than the following would be true:

- Every state, city, town, and private owner would be compensated for leasing (note not sale) their land when telecommunication infrastructure make use of it along with the property tax for the affected property.

- Wireless competitors are free to interfere with each others signals.

Re: Right of Way.

Wireless and Wired telecommunications require right of way to exist; end of story.

Yup. Unless they're truly "private" and use only private property that they've either bought or leased.

- Every state, city, town, and private owner would be compensated for leasing (note not sale) their land when telecommunication infrastructure make use of it along with the property tax for the affected property.

Yeah, they like to talk about how much they've invested in equipment, but that's nothing to what it would cost them lease all the land they would need in the open market.

- Wireless competitors are free to interfere with each others signals.

Signal interference is a red herring. There are technical means to avoid such interference, the best of which is probably something known as ultra-wide-band (UWB). However, the FCC won't allow UWB because it would:
1. Introduce the possibility of effective competition in the public communications market (at the expense of the FCC's incumbent buddies);
2. Eliminate much of the need for the FCC itself.

So long as big business and big government are against it, true competition is a pipe dream.

Re: Re: Re: Right of Way.

1- UWB is unreliable and hogs tremendous amounts of bandwidth.

Wrong, on both counts. UWB has been shown to be reliable and shares bandwidth rather than hogging it. In fact, unless you know precisely where to look, a UWB signal can be very to to even detect, which makes it very attractive to the military.

2- There is NO SUCH THING as an RF signal that is resistant to interference.

Wrong again. In fact, that's one of the strengths of UWB and another reason why UWB is used quite a bit in military applications.

There are actually alot of other issues with UWB. I was just concerning myself with your argument.

The main regulatory issues are political (it is disruptive to the status quo and is difficult to snoop on), not technical.

I'm assuming that you're just mistaken and not being deliberately misleading (yes, I did notice your ham call sign), but I'm a fully qualified communications engineer with experience in this area, and believe me, UWB works. That's why it's mostly not allowed for civilian use.

Glossing over

What you fail to mention, is that the internet is a physical network. ISPs own the equipment that connects their customers to the broader WAN. They own what goes in and out of that equipment. The internet is not open by nature as you insist, it is only as open as everyone involved allows it to be.

Re: Glossing over

Effectively, you could take Lyons' twisted reasoning and apply it to nearly any government regulation. Taxes? Clearly an unjustified "taking" of someone's private property. Highway speed limits? An unjustified "taking" of the private owners' use of their own automobile. It's not hard. Try it with some other laws.